Under the Radar

Blog Roll

Holder OKs limited Risen subpoena

Attorney General Eric Holder has authorized federal prosecutors to subpoena New York Times reporter James Risen in connection with the scheduled leak trial of former CIA officer Jeffrey Sterling, but the government will not ask the veteran journalist questions that could directly identify Sterling as a confidential source, the Justice Department said in a court filing Tuesday.

The concession from Holder may not completely defuse a potential First Amendment confrontation in the case since Risen's attorney declined to say Tuesday whether his client was willing to offer the limited testimony prosecutors plan to seek. In addition, it's unclear what questions defense lawyers may ask Risen or whether he would be willing to answer those.

During a hearing in federal court in Alexandria, Va. Tuesday morning that lasted less than 15 minutes, U.S. District Court Judge Leonie Brinkema set another session Jan. 5 where prosecutors and defense lawyers could run through what questions Risen would and would not be willing to respond to.

"He has agreed to answer a few questions about how he prepared the book," the judge said, apparently referring to a court pleading filed in 2011 as part of Risen's bid to claim reporter's privilege protected him from identifying his source. Brinkema bought that argument, but a federal appeals court overturned her ruling and the Supreme Court decided not to wade into the issue.

"I know a couple of years back he was prepared to do that," replied Risen's lawyer, Joel Kurtzberg. He did say the journalist would attend the Jan. 5 hearing. However, Kurtzberg made no commitment about what questions Risen would answer.

The new Justice Department filing submitted minutes before Tuesday's hearing (and posted here) says prosecutors were authorized by Holder to ask Risen to confirm that he has a confidentiality agreement with his source or sources for a part of his book "State of War," that Risen authored the book and two earlier Times articles and that they accurately reflect information provided by named or unnamed sources.

The filing also asks Risen to confirm that he had a non-confidential source relationship with Sterling, apparently in reference to a 2002 Times article about a discrimination lawsuit Sterling filed against the CIA.

The information Sterling is accused of leaking, about a top-secret CIA effort to undermine Iran's nuclear program with flawed blueprints, never appeared in the Times because Bush Administration officials persuaded the newspaper to kill the story on national security grounds. However, Risen put details of the effort in his 2006 book.

Brinkema said the Jan. 5 hearing could streamline Sterling's trial. She said she didn't want the jury present while Risen was "bombarded with questions he says he declines to answer...I want to make sure the questions he has to answer are set in stone."

"We're trying to tailor this trial to make it as efficiently tried as possible," the judge said.

A lawyer for Sterling, Ed MacMahon Jr., said he had doubts that Risen's testimony could be limited in the way the Justice Department indicated Tuesday.

"I doubt we can sanitize this completely by limiting this to two to three questions. It's hard for us to fathom," MacMahon said, while indicating he was open to discussions the judge suggested about using the hearing as a dry-run or perhaps even reducing it to a transcript to be submitted to the jury.

Under the Constitution, Sterling has a right to have the testimony presented live to the jury if he wishes.

MacMahon also suggested that if Risen testifies, the defense could introduce evidence about the scope of the government's investigation into the Times reporter. POLITICO previously reported that the feds obtained Risen's bank records, credit reports and details of his travel. The defense attorney said in court Tuesday that prosecutors also got copies of Risen's Fedex receipts as well as "Western Union transactions of his children."

Prosecutor James Trump said he believed that information would likely be inadmissible as irrelevant, but acknowledged that Sterling's lawyers aren't bound by the limits Holder has placed on the prosecution team.

"Defense counsel are not under the restrictions we're under as to questions that can be posed to Mr. Risen. Defense counsel can ask any question he wants," Trump said. "We're completely in the dark as far as what questions defense counsel would propose to Mr. Risen."

Several years ago, prosecutors suggested a compromise in which they would ask Risen questions about when and where he got the information, but not directly ask him about the name of his source for his account of the classified CIA program targeting Iran's nuclear effort. Risen rejected that offer.

However, Holder—acting on a recommendation from Deputy Attorney General Jim Cole—excluded the questions about from when and where Risen obtained the details, according to a Justice Department official who asked not be named.

Holder has repeatedly said that no journalist will go to jail on his watch for doing his or her work. It is unclear how that pledge would play out if Risen won't answer the questions outlined in the government pleading or if he refuses to answer defense questions.

Sterling faces 10 felony counts, included charges of illegally maintaining classified information at his home and providing confidential national security information to Risen. The ex-CIA officer is set to go on trial Jan. 12.

At the close of Tuesday's hearing, Kurtzberg made clear that whatever questions Risen ultimately answers would ultimately be under compulsion of a subpoena.